English Legal History and its Materials
The Community's Peace: Witchcraft, Popular Culture, and the Law during the Early Modern Period

“[I]n the case of Witch-Craft many things are very difficult, hidden, and infolded in mists and clouds, over-shadowing our reason and best understanding.”

John Cotta, The Triall of Witch-Craft (1616)


William Shakespeare’s Macbeth begins, not with the play’s namesake, but with a meeting of three witches at night. Under the cloak of darkness, the “weird sisters” gather to plan out their encounter with Macbeth. The play, written and performed around the turn of the 17th century, is one of the longest-lasting and most popular depictions of witchcraft. Though not main characters themselves (their names are but “First Witch,” “Second Witch,” and “Third Witch”), they are central to the unraveling of the plot. Marion Gibson notes that “with their economical, rhythmic and riddling speeches,” the weird sisters “create in a few short scenes an oppressive atmosphere of evil and mystery which blights the whole play.” Gibson at 112.

Just like the three witches in the play, however, little is known about the real witches they intended to imitate. Theorizing their purpose in the play, Gibson notes a doubt left unanswered: “Attention is directed towards the source of evil, but nothing is revealed [about them] and the audience and readers, like the characters, are left unsatisfied.” Gibson at 112. Gibson’s analysis veers in the direction of attempting to explain the inspiration for the witch characters (she notes a likely a blend of Scottish and English references to indulge the King and audience). Id. Though modern readers of Shakespeare know very little about the witches, how much did the audience at the time of the play’s development know and understand about the witches? How did they relate to the characters (and what about real witches themselves)? After all, at the time of the play’s creation and performance, witchcraft was considered real by many—and a crime at that.


My intent in this paper is to explore some of the reasons why early Modern English people convicted others of witchcraft. Much is written on the evidence used to convict these women, for they were primarily women, of evil-doing but much less is known as to the reasons why the common belief allowed such an outcome. This, of course, is a far more complicated question with few definitive or satisfactory answers. Reaching the thoughts and beliefs of the common people is a difficult task to undertake. For one, what has passed on in time of common beliefs, much like the words of the weird sisters, was facilitated through the mouths and memories of others (the sort of narrators of real life). After all, most common people could not read or write. Additionally, the sources from which we can divine the common understanding of witchcraft are largely biased: the court sources, in the form of records and the writings, of educated observers and the demonological tracts of theologians. Sharpe at 58.

Left with few historical records, this papers reaches some of these questions by attempting to understand the cultural life which the witches and their accusers inhabited. My original inquiry into how witchcraft, again a crime, was proved at trial necessarily leads to a focus on the states of mind of those on whom a conviction hung: the lay jurors. I use the anthropological writings, heavily borrowing from Clifford Geertz’ writings on common sense and the law, to arrive at some of the answers and to think through some other proposed answers.

On some level, a basic one perhaps, witchcraft helped explain the reason why events, many of them tragic or unfortunate, occurred—why bad things happened to the supposed good people of the community. Though Trevor-Roper has called witchcraft persecution “[t]he rubbish of the human mind”—and he is not wrong, in certain respects—it is also worth exploring the socio-cultural beliefs that made a belief in witchcraft real. Trevor-Roper at 97. As Carlo Ginzburg explores in Ecstasies, witchcraft persecution, with the witches’ sabbath at the center, emerged from a history of scapegoating in continental Europe. In this vein, common beliefs and imaginations were crucial to the prosecution of witchcraft. Gaskill suggests that “no social, economic, religious or cultural facts shaped the history of English witchcraft more.” Gaskill, Witchcraft and Evidence, at 39. For a conviction of witchcraft to stand—that is, for the evidence to prove successful—it had to convince the people of the community; it had to make sense of their lives.


The prosecution of witches in England materialized during the early modern period. By the sixteenth century, the belief in the existence of witchcraft was a common one and the belief in dark magic was regarded as “the logical corollary of the equally widespread possibility in the belief of beneficent magic.” Thomas at 437. Though the beliefs in dark magic “were as old as human history, and in no sense peculiarly English,” during the late Middle Ages, Christianity began to distinguish this type of magic from the unharmful kind. Thomas at 438. Among the intellectual class, what resulted was demonology, a field of study that constructed a new way of seeing the world from the old beliefs. Trevor-Roper at 91. As such, though witchcraft was ascribed to “virtually every kind of magical activity or ritual operation that worked by occult methods,” Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, at 48, it came to be regarded as the “supernatural activity, believed to be the result of power given by the Devil, and causing physical damage….” McFarlane? at 82. In practice, the ways in which witchcraft mattered to English society differed between the learned classes and the rest of society. Whereas theologians and others who studied witchcraft were concerned with Devil-worshipping, a heretical practice, the “uneducated populace” was more concerned with the damage that these evil creatures caused to persons and property within their community—those experiences which they could feel and to which they fell victim at times. See Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, at 48-49; Sharpe.

Since witchcraft rarely occurred among family members (except perhaps in cases of bewitched husbands or magical acts to induce marriage), it was regarded as more of a communal problem. Macfarlane at 87. As such, witches of the bad sort came to be seen as those who “afflict[ed] their neighbours and others with misfortune, sickness, and death, and who also practise[d] a range of ungodly magical rites in the community.” Marion, Intro at x. From these definitions, we can gather that witches accused of wrongdoing did not practice their craft silently. Rather, she was one who exposed her community to the evils which she possessed and with which she disturbed the peace.

This view of witchcraft was taken up in the courtroom, where it was treated as an “anti-social crime” rather than heresy. Court records suggest that most prosecutions were provoked by accusations of damage to persons and property in the community rather than worshipping with the Devil. Thomas at 443. Unlike theologians, witch finders in the community were not as interested in “the mechanics of the operation than in the fact of the witch’s malice.” Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, at 51. Though proving either strand of the crime would seem like an uphill battle by modern evidentiary standards, the law of evidence, though in its development at the time, was not yet in place during the early modern period.

Thus, as to the actual evidence introduced, confessions, whether forced or otherwise obtained, “unnatural” body marks, and witness testimony became popular methods to substantiate the accusations of witchcraft. Gaskill at 48.The records that remain of the processes are troublesome: not just because they are few but also because it is difficult to extract from them what the accused believed. Confessions should be analyzed with a healthy degree of skepticism as evidence of the accused’s actual beliefs. After all, demonologists and witch hunters advocated the use of trickery and false promises of leniency to extract confessions “from those who [were] obviously guilty but [would] not say so.” Gibson at 25. Though judicial torture was formally disallowed in England (unlike continental Europe and Scotland), it made its way into witch investigations at times by way of sleep deprivation and the return of ordeals, such as “swimming a witch.” Matthew Hopkins, a popular witch hunter during the Civil War, used these practices, which verged on torture, to obtain confessions from the accused. Hopkins, for example, popularized the use of “dunking” the accused into water and “walking” the sleepless witch as ways to extract confessions. Gaskill at 52-53. See Trevor-Roper at 119 n.1.

Even within this system, little remains of the thoughts and beliefs of the accusers; but far less remains and is known of the unmitigated thoughts and beliefs of the accused. Gaskill notes, if merely in passing, “Most suspects were marginal women whose confessions reflected the misery of hardship, anxiety of moral guilt, and fear of damnation.” Gaskill at 53. Though the outcome of these cases largely turned on what they confessed to, we can discern far less about what they thought, even from their supposed own words. As Geertz remarked in Local Knowledge: Fact and Law in Comparative Perspective, “Men, of course, can lie, and, especially in the presence of judges, often do....” At 189.


What is perhaps most readily striking in the prosecution of witchcraft is the process of law in the making: its effort to find and form some sort of relation—whether of alignment or power over or something else—with the community and its values. This is perhaps part of what Geertz meant when he wrote that “the ‘law’ side of things is not a bounded set of norms, rules, principles, values, or whatever from which jural responses to distilled events can be drawn, but part of a distinctive manner of imagining the real.” Geertz at 173. Through witchcraft, the beliefs from above—whether intellectual, divinely ordered, or both—merged with the lived experiences and beliefs of those below. In this, we see a process that is not neat or orderly but constantly in flux and struggling to make sense of the relations between the people in the community and their systems.

Keith Thomas and Alan Macfarlane have both offered valuable insight into the function of witchcraft in early modern society. In The Relevance of Social Anthropology to the Historical Study of English Witchcraft, Thomas suggests that witch accusations helped alleviate the pressures, whether of social, moral, and/or religious guilt, that afflicted community members as English society moved away from reliance on private charity for care of the poor to ideals of self-help. Macfarlane’s Witchcraft in Tudor and Stuart Essex offers a similar argument. In it, he suggests that witchcraft was the means through which neighbors, in a society founded on Christian communal values, transitioned to publicly dealing with conflict. In this worldview, a witch would inflict harm on her victim for his “unneighbourly behavior”—for example, denying her the sale of a pig or refusing her a loan. Macfarlane at 92.

Though neither account is implausible, and perhaps each helps account for some of the accusations, it is difficult to imagine such a widespread phenomenon, at its most basic level, driven on unaired social tensions. In a way, these accounts undermine the fantastic fervor, whether real, imagined, or fluffed up with which witchcraft manifested:

Year after year inflammatory books and sermons warned the Christian public of the danger, urged the Christian magistrate to greater vigilance, greater persecution. Confessors and judges were supplied with manuals incorporating all the latest information, village hatreds were exploited in order to ensure exposure, torture was used to extract and expand confessions, and lenient judges were denounced as enemies of the people of God, drowsy guardians of the beleaguered citadel. Trevor-Roper at 96.

Though, of course, one ought to question such accounts of social life in early modern England, Trevor-Roper’s incredible description helps shed light on the complexity of the circumstance. Although Thomas and Macfarlane’s arguments that deteriorating social relations between the community’s well-to-do and the poor precipitated accusations of witchcraft are persuasive, these evaluations create a not so insignificant ideological vacuum. Perhaps these tensions laid the foundation, but what else made up the “witch-craze”?

Although it is useful to explain the role that witchcraft played in society, it is equally important to recognize that, whether or not witches could fly on brooms, the belief in the occult was real. For this reason, the legal system was used to intervene in, make sense of, and account for witchcraft. For its part, witchcraft helped to explain those misfortunes that happened in everyday life, or, as Geertz put it, “when ordinary expectations fail[ed] to hold… the cry of witchcraft [went] up.” Common Sense as a Cultural System, at 11.

Perhaps their meanings and origins may differ, the witches of early modern England played a similar role as those in the lives of the Zande people of north central Africa. In Common Sense as a Cultural System, Geertz provides an example of the Zande people’s common sense system, which includes witchcraft, illustrative for trying to understand its purpose in society. When walking along, Geertz explained, a Zande boy might hit his foot against a tree stump. Rather than recognize his own carelessness, he’ll declare, “I did look where I was going; you have to with so many stumps about…and if I hadn’t been witched I would have seen it.” Geertz, Common Sense as a Cultural System, at 10. The details of what and who is a witch are different, but her purpose is the same—to give justification to why things changed for the worse.

Similarly, George Clifford, writing in 1587, illustrated how a witch accusation would arise after injury. The previously healthy English man would account for his unexpected decline in health in some formulation of the following:

Some woman doth fal out bitterly with her neighbour: there followeth some great hurt, either that God hath permitted the devil to vex him: or otherwise. There is a suspicion conceived. Within fewe yeares after shee is in some iarre with an other. Hee is also plagued. This is noted of all. Great fame is spread of the matter. Mother W is a witch. She hath bewitched goodman B. Two hogges which died strangely: or else hee is taken lame. As quoted in Macfarlane at 91.

Though critical of the accusations, this account illustrates the ways in which witchcraft provided the community with an explanation of what was happening in their lives. Paradoxically, as Geertz suggests, “[f]or all the talk about its flying in the night like a firefly, witchcraft doesn’t celebrate an unseen order, it certifies a seen one.” Geertz, Common Sense as a Cultural System, at 11. Though the prosecution of witchcraft emerged from intellectual developments in the field of demonology, the common people, good Christians as they may have been, were not so much concerned with the devilish pact but with the effects they felt through the offenses of others—the witches.


Though literature and law may seem wildly different, through witchcraft it is evident that neither is immune culture—even the popular one. Like the weird sisters, whether witches were the cause or a symptom of the evil that existed in the world and afflicted the lives of common men, they were certainly representative of it.

  • Malcolm Gaskill, Witchcraft, Politics, and Memory in Seventeenth-Century England, 50 The Historical Journal 289 (2007).
  • Malcolm Gaskill, 2008 Witchcraft and Evidence in Early Modern England, PAST & PRESENT 33.
  • Clifford Geertz, Common Sense as a Cultural System, 33 Antioch R 5 (1975).
  • CLIFFORD GEERTZ, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167 (1983).
  • Alan Macfarlane, Witchcraft in Tudor and Stuart Essex, in WITCHCRAFT CONFESSIONS AND ACCUSATIONS 47 (Mary Douglas ed., 2013).
  • WILLIAM SHAKESPEARE, MACBETH (1606?), reprinted in WITCHCRAFT AND SOCIETY IN ENGLAND AND AMERICA, 1550-1750, 114 (Marion Gibson ed., 2003).
  • Keith Thomas, The Relevance of Social Anthropology to the Historical Study of English Witchcraft, in WITCHCRAFT CONFESSIONS AND ACCUSATIONS 81 (Mary Douglas ed., 2013).


Webs Webs

Attachments Attachments

r6 - 21 Dec 2019 - 00:33:17 - IsraelRodriguezRubio
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM